Lead Into Gold?

Lead paint is a serious health problem. Will it become a hot
litigation subject? Probably not.

State attorneys general have been suing and collecting on a wide range of economic fronts these past few months, extracting million-dollar settlements against drug makers, telecom providers, insurance and finance companies, and even magazine publishers. Is there any industry left for them to sue? Well, there's the paint industry. Rhode Island's Patrick Lynch tried that one, and sure enough, he won a landmark judgment in state court.

Lynch sued the paint companies over health damages resulting from the exposure of Rhode Island residents to lead paint over many years. Cases like this had been brought before, but they were very hard to win, because it was difficult to prove that a particular coat of paint, which might have been applied decades ago, caused specific health problems. What's more, paint companies are extremely aggressive in fighting these challenges. At various points during the Rhode Island litigation, there were more attorneys working for the defense than in the entire attorney general's office.

But Lynch and his outside counsel came up with a novel approach. They convinced a jury that since lead paint was a hazard, and was present in more than half of Rhode Island's homes, manufacturers could be held liable on the basis of market share--even if they couldn't be proved responsible for any explicit injuries. The case will be appealed, but the debate is no longer about the existence of a problem--it is about the remedy. That's a major victory for the plaintiffs, no matter what the ultimate disposition might be.

The question is whether the Rhode Island case will set in motion similar suits elsewhere. Business groups worry that it could. "Holding companies liable without proving causation establishes an extremely dangerous precedent and sets the stage for a barrage of meritless lawsuits," says Lisa Ricard, of the U.S. Chamber of Commerce.

But it's not so clear that other jurisdictions will follow Rhode Island's lead. For one thing, public nuisance laws vary greatly by state, so the precedent may not apply. There are several municipal cases pending, and attorneys for cities and counties are much encouraged by Lynch's win. But most state attorneys general have been cautious about getting involved with lead paint.

In 2003, 47 of the 50 AGs signed an agreement with paint makers calling for tougher warning labels about the danger of stirring up lead paint dust in home renovation. That seemed to dampen their enthusiasm for further litigation. "I don't think you'll see another state filing a case," says Jim Tierney, a former Maine AG who now runs a program on attorneys general at Columbia University.

State AGs are rarely timid when it comes to seeking out new enemies to sue. But whether it's because of the special difficulties involved with this issue--or perhaps because the judge in the Rhode Island case disallowed punitive damages--they just aren't showing much inclination to dip into lead paint.